Guidance

Mandatory Life sentences

The only offence for which a "life sentence", as defined by section 277 Criminal Justice Act 2003, is "fixed by law" is murder.

The Act defines "life sentence" as a sentence of imprisonment for life, a sentence of detention during Her Majesty's pleasure and a sentence of custody for life. When such a sentence is imposed the court is required to fix a "minimum term" to be served by the offender (section 28(5) to (8) of the C(S)A 1997- early release provisions).

A "whole life order" (where no minimum term is set) can be made if the offender was 21 or over when he committed the offence and the seriousness of the offence warrants it (section 269 Criminal Justice Act 2003). However in July 2013 the Grand Chamber of the European Court of Human Rights ruled in the case of Vinter and others v UK that whole life orders of imprisonment violated Article 3 of the European Convention of Human Rights which prohibits inhuman and degrading treatment and torture. This has been successfully challenged. On 18 February 2014 in the case of Att. Gen's. Reference (No 69 of 2013), Re; R v McLaughlin and R v Newell [2014] EWCA Crim 188 the Court of Appeal, led by LCJ Thomas, held that whole life sentences imposed pursuant to section 269 of the Criminal Justice Act 2003 were not incompatible with Article 3 of the European Convention on Human Rights 1950 and judges were to continue to impose them in exceptional circumstances. There is an adequate review mechanism where such sentences are imposed. Thomas said the law in England and Wales provides an offender "hope" or the "possibility" of release in "exceptional circumstances". Although the Court found it difficult to specify in advance such circumstances. "But circumstances can and do change in exceptional cases." Therefore Section 30 Crime (Sentences) Act 1997 provides the regime through which such sentences can be reduced and is compatible with Article 3.However any case where a whole life order is being considered must be referred to the Appeals and Review Unit before any submissions are made and sentence passed by the court.

Sections 90 and 93 of the Powers of Criminal Courts (Sentencing) Act 2000 provides that where the defendant is convicted of murder and at the time of committing the offence is aged under 18, they shall be detained during Her Majesty's pleasure. Where they are under 21 and convicted of murder, they shall be sentenced to custody for life unless Section 90 PCC(S) A 2000 applies.

Automatic Life sentences

Section 109 Powers of Criminal Courts (Sentencing) Act 2000 provides for an automatic life sentence where a person over 18 years of age is convicted of a second serious offence committed after 30 September 1997.

Section 109(5) of the PCC(S) A 2000 states that the following are "Serious offences" for the purposes of this section:

Attempted murder, conspiracy to murder, or an incitement to murder;

Soliciting murder;

Manslaughter;

GBH (section 18 OAPA 1861);

Rape and attempt rape;

Intercourse with a girl under 13 (section 5 Of the Sexual Offences Act 1956);

Possession of a firearm with intent to injure (section 16 FA 1968), use of a firearm to resist arrest (section 17 FA 1968) or carrying a firearm with criminal intent (section 18 FA 1968); and

Robbery where at the same time the offender was in possession of a firearm or imitation firearm.

This section came into force on 1 October 1997. It was repealed with effect from 4 April 2005, but continues to apply to offences committed before that date.

The provisions have been replaced by the "dangerous offender" provisions in Chapter 5 of the Criminal Justice Act 2003, see Dangerous Offenders elsewhere in the Legal Guidance.

The court has a discretion not to impose the mandatory life sentence, if of the opinion that there are exceptional circumstances relating to either of the offences, or to the offender which justify it not doing so. The exceptional circumstances must be stated in open court (Section 109(3) PCC(S)A 2000).

Minimum Fixed Term Custodial Sentences

The section requires that a Crown Court shall impose a sentence of at least 7 years for a third class A drug trafficking offence if the offender:

was 18 or over when he committed the offence;

committed the offence on or after 30 September 1997;

had previously been convicted of two other class A drug trafficking offences in the UK or "other member state"; and

one of those offences had been committed after conviction for the other.

The drug trafficking offence must be in respect of a Class A drug which has the same meaning as in the Misuse of Drugs Act 1971. "Drug trafficking offence" means any offence which is specified in paragraphs 1 and 10 of schedule 2 to the Proceeds of Crimes Act 2002. The most common offences are the production, supply and possession with intent to supply a controlled drug. The definition also includes conspiracy, attempt, and incitement to commit drug trafficking offences.

The Crown Court shall impose a sentence of at least three years for a third domestic burglary if the offender:

was 18 or over when he committed the offence;

committed the offence after 30 November 1999;

had previously been convicted of two other domestic burglary offences in England and Wales or other parts of the UK or "any other member state";

one of those offences has been committed after conviction for the other; and

both of the previous domestic burglaries had been committed on or after 1 December 1999.

Section 111(5) of the Act defines domestic burglary as one committed in respect of a "building or part of a building which is a dwelling". There is very little case law on the question of what is a dwelling, and it will usually turn on the facts of an individual case. For example, where the accused committed burglary by breaking in to a guest room in a hotel (where the guest was in residence but out of the room at the time) and stole property, the court observed that on these facts, in its view "burglary of a hotel bedroom was akin to burglary of domestic premises". (R v Massey [2001] 2 Cr. App. R. (S) 80 )

Sections 9(1)(a) and (b) and 10 of the Theft Act 1968 apply for the purposes of section 111 of the Act. Offences of conspiracy to burgle a dwelling house, incitement or an attempted burglary are not "burglary" for the purposes of section 111.

In R. v. Hoare [2004] 2 Cr.App.R. (S) 50 CA it was held that the offences and convictions must occur in the right order, namely:

1. commission of the first offence; 2. conviction of the first offence; 3. commission of the second offence; 4. conviction of the second offence; 5. commission of the third offence; and 6. the conviction of the third offence.

Reducing the minimum term under sections 110 and 111

The 15% reduction on custodial sentences over 12 months under the Sentencing Guidelines Council's "New sentences: Criminal Justice Act 2003" guideline does not apply to a sentence imposed under section 110.

But the maximum reduction for the guilty plea will be 20% of the minimum term which would otherwise have been imposed for an offence where the offender falls to be sentenced under either s.110 or s.111 PCC(S)A,( s.144(2) Criminal Justice Act 2003).

The court has discretion not to impose the minimum custodial sentence of seven years if it is of the opinion that there are particular circumstances which relate to any of the offences, or to the offender which would make it "unjust" to do so in all the circumstances. The particular circumstances must be stated in open court.

"Unjust":

It is not the same as "exceptional circumstances";

It would not be "unjust" if the sentence is only "manifestly excessive" for the offence in question but a sentence may be "unjust" if it would be "inappropriate"(Harvey [200] 1 Cr.App.R.(S) 368,CA);

Where a legitimate expectation that a drug treatment and testing order (DTTO) would be imposed and the report is favourable ( R V Gibson [2004] 2 Cr.App.R(S) 84;CA);

The circumstances of the offender e.g. the antiquity of the previous convictions and good progress on DTTO together with delay in the instant proceedings (R. v. McDonagh [2006] 1 Cr.App.R.(S) 111); and

The circumstances of the offence e.g. the offender is not a commercial dealer and dealt in drugs to fund his own habit (R .v. Turner [2006] 1 Cr.App.R (s) 95).

The principle of totality should be applied which could mean that it is "unjust" to impose the minimum in all the circumstances ( R. v. Sparkes [20110 Crim.L.R. 654, CA)

Section 287 of the Criminal Justice Act 2003 inserted a new section 51A into the Firearms Act 1968 that introduced a mandatory minimum sentence for the offence of possession, purchase, acquisition, manufacture, transfer or sale of certain prohibited weapons on or after 22 January 2004.

The section requires that a Crown Court shall impose a minimum sentence of:

5 years' imprisonment if the offender is aged 18 or over when convicted; or,

3 years detention under s. 91 PCC(S)A 2000 (long term detention) if the offender was under 18 but over 16 when the offence was committed.

For offences committed on or after 28 May 2007 the Firearms (Sentencing) (Transitory Provisions) Order 2007 rectified a lacuna identified by providing that where there was a reference to an offender aged 18 or over, it should read an offender aged 21 or over; and inserted a new sub-paragraph providing that where an offender is aged at least 18, but who is under 21 the "appropriate custodial sentence", means a sentence of detention at a young offenders institution under section 96 PCC(S)A 2000.

For further explanation of the different commencement dates and firearms generally please see the chapter Firearms, elsewhere in the Legal Guidance.

The qualifying offences are:

Section 5(1)(a) any firearm which is so designed or adapted so that two or more missiles can be successively discharged without repeated pressure on the trigger e.g. machine guns, burst fire weapons;

Section 5(1)(ab) any self-loading or pump-action rifled gun other than one which is chambered for 22 rim-fire e.g. short barrelled rifles or carbines;

Section 5(1)(aba) any firearm which either has a barrel less than 30cm in length or is less than 60cm in length overall, other than an air weapon, a muzzle-loading gun or a firearm designed as signalling apparatus e.g. handguns, revolvers;

Section 5(1)(ac) any self-loading or pump-action smooth-bore gun which is not an air weapon or chambered for .22 rim-fire cartridges and either has a barrel less than 24" in length or is less than 40" in length overall e.g. self loading or pump action shotguns;

Section 5(1)(ad) any smooth-bore revolver gun other than one that is chambered for 9mm rim-fire cartridges or a muzzle-loading gun e.g. Dragon or Striker Gun;

Section 5(1)(ae) any rocket launcher, or any mortar, for projecting a stabilised missile, other than a launcher or mortar designed for line-throwing or pyrotechnic purposes or as signalling apparatus;

Section 5(1)(af) any air rifle, air gun or air pistol which uses, or is designed or adapted for use with, a self- contained gas cartridge system e.g. Brococks;

Section 5 (1)(c) any cartridge with a bullet designed to explode on or immediately before impact, any ammunition containing or designed or adapted to contain any such noxious thing as mentioned above, and, if capable of being used with a firearm of any description, any grenade, bomb (or other like missile), or rocket or shell designed to explode as aforesaid e.g. ammunition containing explosive bullets or CS;

Section 5 (1)(A)(a) any firearm which is disguised as another object, e.g. pengun, key fob gun,

Section 29 of the Violent Crime Reduction Act 2006 extends the mandatory minimum sentence (of not less than 5 years) to the offence of using another person to mind a dangerous weapon, where the weapon is a prohibited weapon.

Section 30 of the Violent Crime Reduction Act 2006 extends the mandatory minimum sentence under section 51A ( 5 years for over 18 and 3 years for under 18 but over 16) to the following offences committed on or after 6 April 2007, where the firearm used is a prohibited weapon listed above:

Reducing the minimum term

Section 51A does not allow for a reduction of the required minimum term on account of a guilty plea.

The court has discretion not to impose the minimum term, if of the opinion that there are "exceptional circumstances" relating to either of the offences, or to the offender which justifies it not doing so. The exceptional circumstances must be stated in open court.

"Exceptional circumstances":

Where imposing the minimum term would result in an arbitrary and disproportionate sentence (R. v. Rehman; R .v. Wood [2006] 1 Cr.App.R.(S) 77 CA);

Circumstances of the offender- e.g. unfit to serve a five year sentence or is of advanced years; age and ill-health ( R. v. Shaw [2011] 2 Cr.App. R.(S) 65 CA)

Procedure

Charging Practice

The mandatory and minimum sentence provisions underline the need for care in selecting the appropriate charge and strict application of the Code for Crown Prosecutors.

Police

The police should highlight convictions which may qualify under the Act when submitting the case file to the CPS.

Magistrates' Court

Sections 110 and 111 of the Act; Venue for trial

The offences covered by these sections are either way or indictable only. Sections 110 and 111 of the Act provide that an either way drug trafficking or domestic burglary offence, which could attract the minimum sentence of 7 years or 3 years, shall be triable only on indictment.

The prosecutor should identify that an accused qualifies under the Act (e.g. has two qualifying convictions) and is before the court for a third offence. The prosecutor must take positive steps to advise the magistrates as soon as possible that the prosecution assert that an accused qualifies under the Act and always before Plea Before Venue.

Where an accused appears before a magistrates' court and the CPS claims that he or she is subject to two qualifying convictions under sections 110 or 111 of the Act the court must satisfy itself:

that the accused is charged with an offence that qualifies under the relevant sections; and

that upon conviction the accused may be sentenced to a statutory minimum sentence.

The court may send or commit the accused for trial.

If the magistrates' proceed to deal with a third offence which qualifies under section 110 or 111 of the Act and should be treated as indictable only, it is likely that proceedings before the court are a nullity.

Section 51A Firearms Act 1968; Venue for Trial

The offences that attract the minimum mandatory sentence are triable only on indictment (Section 288 Criminal Justice Act 2003 also amends Schedule 6 to the Firearms Act 1968). They should therefore be sent to the Crown Court for trial.

16 and 17 year olds are subject to a mandatory minimum sentence of 3 years and so the case must be committed to Crown Court for trial. The youth court has no jurisdiction to try such cases (s24 (1B) Magistrates' Courts Act 1980).

Challenges in the Magistrates' Court to one or more qualifying convictions

Where the defence indicate that there is a challenge to a qualifying conviction under the Act, the court should be advised and the case adjourned.

If the dispute turns on whether a previous conviction qualifies (e.g. the accused claims a conviction was for a class B drug rather than a class A drug trafficking offence), it is the responsibility of the CPS to request the convicting court to supply a copy of the memorandum or certificate of conviction.

Where the accused disputes a qualifying conviction or asserts that for any other reason section 110 or 111 does not apply, the magistrates' court must resolve the dispute to its own satisfaction and rule on the point. In most circumstances a memorandum or certificate of conviction, particularly under section 113 of the Act, showing that a particular conviction qualifies under the 2000 Act is likely to be sufficient proof at this stage in the proceedings. Where in exceptional circumstances the memorandum or certificate is not capable of resolving the dispute, the court will be able to consider whatever other information is available to resolve the dispute.

Where an accused disputes that he or she is the person named in the certificate of conviction, the normal means of proof will apply.

Crown Court

Indictment

In order for a burglary to be treated as a "domestic burglary" for sentencing purposes under section 111, it is important for the word "dwelling" to appear in the indictment particulars ( R. v. Miller (Gary) [2011] 1 Cr.App.R (S) 2).

Case preparation issues

The Crown Court should be advised by the magistrates' court that sections 110 or 111 apply. However, the CPS should also confirm with the court that they are so aware.

The prosecutor or the caseworker preparing the Outline of Allegations and Issues for Judge and Defence should note under "Aggravating Features" when sections 110 or 111 Powers of the Criminal Courts (Sentencing) Act 2000 apply. A copy of the defendant's previous convictions should be annexed to the form.

It is also the responsibility of the police to provide the Crown Court with brief details of the circumstances of the last three similar convictions and/or of convictions likely to be of interest to the court, the latter being judged on a case by case basis. This information should be provided separately and attached to the antecedents." See Part 10A.6 of the Criminal Practice Directions [2013] EWCA Crim 1631.

The defence will be aware from committal or will have had a notice that a mandatory minimum sentence might apply.

Where sections 110 or 111 apply the prosecution advocate should enquire at the PCMH whether the defendant accepts:

that the previous convictions relate to him or her;

the convictions bring into play the Powers of the Criminal Courts (Sentencing) Act 2000;

the facts of the previous offence(s) as outlined in the documentation provided by the police; and

whether the defence will claim that there are exceptional or particular circumstances in the case for not imposing the prescribed sentences.

Part 10A.3 of the Criminal Practice Directions [2013] EWCA Crim 1631 states that the defence representative shoud take instructions on the defendant's record and if the defence wish to raise any objection to the record, this should be made known to the prosecutor immediately.

This is an added safeguard and may be a further indicator where a conviction is disputed.

Challenges in the Crown Court

As with the magistrates' court, it will be the responsibility of the CPS to request the relevant certificate or memorandum of conviction.

Even though the conviction and the identity of the offender are accepted there may be a dispute as to the facts of the previous offence(s). These may be relevant to finding exceptional or particular circumstances which would justify not passing a mandatory or minimum sentence.

The antecedents which are based on the police file may not resolve the issue. They will not take account of any agreed basis of plea or judge's finding of fact on sentence.

In these circumstances, it may be appropriate to consider:

obtaining the transcripts of the sentencing remarks for the previous offence; or

whether the previous sentence itself is relevant. If the defendant received a sentence within the normal tariff for the previous offence, this may suggest that there were no exceptional or particular circumstances.

CPS responsibilities at sentence: Unduly Lenient Sentences

The Unduly Lenient Sentence (ULS) provisions apply when the court fails to impose a mandatory minimum term, and also when the court does impose such a mandatory minimum term, but the sentence itself is considered to be unduly lenient on the facts of the case itself. In both these situations, the case is capable of review and consideration should be given to either:

having the case re-listed by applying the 56 day slip-rule to correct a simple error. However this should be done well within 28 days of sentence to ensure that a ULS reference within the 28 day time limit remains open in the event that the court declines to alter the sentence under the slip rule; or

seeking an unduly lenient sentencing reference by the Law Officers to the Court of Appeal (under section 36 Criminal Justice Act 1988 as amended). Note that there are strict time limits for submission of applications to refer a case and this may not be extended.

Prosecutors should remind members of the public (particularly victims and witnesses) who are dissatisfied with the sentence that they have the right to go the Attorney General direct regardless of whether the prosecutor considers there is merit in such a petition. As part of the explanation prosecutors should provide details of the Attorneys address and emphasise the 28 day time limit.